The practice of telemedicine continues to be one of the fastest-growing methods of delivering patient care, and recently legal changes passed by the South Carolina General Assembly will only increase the importance of telemedicine for patients and providers in the state.

As of July 1st, physician assistants (“PAs”) and advanced practice registered nurses (“APRNs”) (collectively referred to as “Advanced Practice Providers” or “APPs”) are now authorized to practice telemedicine in South Carolina. APRNs and PAs who practice telemedicine still must “adhere to the same standard of care as a licensee employing more traditional in-person medical care. Failure to conform to the appropriate standard of care is considered unprofessional conduct and may be subject to enforcement by the board.”

Under the new South Carolina law, PAs and APRNs may establish a relationship with a patient via telemedicine—as long as certain standards are met. For example, an APP cannot prescribe medication over the phone when an in-person physical exam is necessary for diagnosis. A simple questionnaire without an appropriate evaluation (involving patient history, mental status evaluation, physical exam, diagnostic/testing, etc.) will not suffice. Also, the APP must make follow-up care available if needed.

Advanced Practice Providers may prescribe many types of medicines for tele-patients as long as they comply with the Telemedicine Act. However, APPs are prohibited from prescribing many Schedule II and III narcotics, erectile dysfunction drugs and other “lifestyle medicines,” and “morning after” pills intended to induce abortions. The new legislation requires APPs practicing telemedicine to:

Create and maintain patient records in the same manner and of the same quality as they would for in-person visits, and these records are subject to HIPAA, HITECH and state privacy law compliance. APPs are expected to use secure technology. Such records must be made available to other medical practitioners and the patient when appropriate and in accordance with applicable law.

Discuss with the patient the value of having a primary care physician and, if the patient requests, provide assistance in identifying available options for a primary care medical home.

Verify the identity of the patient and inform the patient of his/her name, location and professional credentials.

Ensure the availability of appropriate follow-up care.

Common-sense best practices apply as well. APPs should be well-trained to use the communications technology employed in a telemedicine practice. The equipment needs to be of sufficient image resolution and data speed.

To date, South Carolina lawmakers have not enacted private payer parity laws that would require private payers to reimburse telemedicine services at the same level as in-person services. The South Carolina Medicaid program provides reimbursement for telemedicine services comparable to reimbursements for in-person services.

The state has established that recognizing telemedicine does not constitute an expansion of Medicaid-covered services, but an option for the delivery of certain covered services. Under Medicaid, APPs do not have to be located in the South Carolina Medical Service Area (the state plus areas of North Carolina and Georgia within 25 miles of the state line), but referring sites must be. These sites can be hospitals, physician offices, rural health clinics, womblebonddickinson.com 2 federally qualified health centers, community mental health centers, public schools and Act 301 behavioral health centers.

One key difference for APPs is that the South Carolina Telemedicine Practice Act does not require the presence of a “referring provider,” while Medicaid does.

APPs may bill Medicaid for telemedicine and telepsychiatry services as long as they are currently enrolled in the South Carolina Medicaid program and that the provided services are within the scope of their practice.

Medicaid will reimburse mental health providers for:

Consultations;

Virtual office visits

Individual psychotherapy

Pharmacologic management; and

Psychiatric diagnostic exams and testing.

Furthermore, CMS, in its proposed 2019 Medicare Physician Fee Schedule and Quality Payment Program, announced that it will reimburse providers for certain telehealth services, including check-ins and support for remote patient monitoring programs – subject to certain requirements and conditions. Medicare permits APPs to furnish covered telehealth services subject to State law.

APRNs and PAs providing telemedicine services in South Carolina must be licensed by their respective licensing boards to practice in this State. The failure to hold a valid South Carolina license when telemedicine services are provided may give rise to disciplinary action by the applicable State licensing board and liability for professional negligence. The majority of State boards take the position that the state where the patient is located when the telemedicine services are provided has personal jurisdiction over the practitioner providing those services and require telemedical practitioners to be licensed in the state in which the patient is located, thereby exercising jurisdiction over the practitioner’s practice of telemedicine in that state.

The new legislation expands the scope of practice for APPs and allows for increased access to health care in South Carolina, particularly in rural parts of our state and across state lines. However, practitioners and providers need to fully understand the breadth of the new legislation and its potential implications on scope of practice, professional licensure, and liability. Thus, as with any other healthcare practice, providers need to be aware of the laws and regulations governing telemedicine and ensure their practices comply with these requirements. Sandra Miller, Chair of US – Healthcare Sector

Alissa possesses first-hand knowledge of the healthcare industry as an attorney and registered nurse. Her legal practice and medical background enable her to advise and represent national, regional and local healthcare providers on a broad and diverse spectrum of legal issues.

She has represented healthcare providers in health law and healthcare litigation throughout the duration of her career. She regularly represents hospitals, long term care facilities, home health agencies, pharmacies, and professionals in healthcare litigation, regulatory...

Marshall Allen has practiced in the area of health care and administrative law for more than twenty years. He has represented a wide variety of health care and other professional providers, including physicians, dentists, accountants, physical therapists, nurses and chiropractors, as well as the professional practices of these providers. In addition to representing individual providers and their practices, he also represents hospitals, outpatient centers, long term care centers and other health care institutions. Mr. Allen has extensive experience in organizing and structuring medical and other professional practices in conformity with federal and state compliance rules and standards. He represents health clients in administrative disputes, including medical staff disciplinary matters, actions before the state licensure boards and administrative litigation arising out of the grant or denial of certificates or approvals issued by the South Carolina Department of Health and Environmental Control for the operation of health care facilities and/or medical equipment.

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